William R. Pace has been the face of the civil society’s backing of the International Criminal Court (ICC) since the ’90s. As the Convenor of the Coalition for an International Criminal Court (CICC) since its founding in 1995, Pace has remained a stalwart defender of the Court even as it seemingly pinged from one catastrophe to the next.
As he prepares to step aside from his role at CICC, Justice Hub sat down with Pace, an American citizen, for an interview. It covers the balletic negotiations to establish the ICC, the Court’s early years and the stormy present dominated by the drip, drip, drip of reporting that indicates that all may not be well within the walls of the world’s only permanent international criminal tribunal.
The interview is published here as part of our #MyJustice series.
Justice Hub: How long have you been doing this job?
We had a meeting 25 February 1995 and at the end of the founding meeting, we established the Coalition, and the members asked me to serve as convener. It has been very nearly 25 years.
Justice Hub: What was it like at that first meeting? What did you imagine you were trying to do?
We had two representatives, the president of the Yugoslav Tribunal (ICTY) Antonio Cassese and the young legal adviser for the Argentine mission [to the United Nations], who both said “don’t expect this treaty to ever happen – not in your lifetime – but it’s important to participate as NGOs and follow the discussions.” Then Cassese added, “I need your support [at the UN] to get funding for the Yugoslav tribunal.”
One of the first principles that we agreed to was to support the development of the ad hoc tribunals for Yugoslavia and then Rwanda, on the view that if they failed badly then the establishment of an independent permanent court would be severely less possible.
Justice Hub: Was it clear to you at that stage what shape the ICC would take?
No, I think part of the strength of the process finally succeeding was that for all the first 5 or 7 years, the idea of the court was still seen as very unlikely and that the governments would never agree to create an independent International Criminal Court. In 1996 and 1997, because of the success of the landmines treaty which was done outside of the UN, people would come to my office every week and say international figurehead: “you need your Bono. You need your Lady Diana.” But we had decided no.
Astoundingly, the legal advisors from Foreign Ministries, Justice Ministries and the UN were actually proceeding much more constructively than anyone could have predicted and we didn’t want to alert ministers, parliamentarians, and even the media, of what was up because we knew that that could then derail the whole process. That’s somewhat verified by the reaction in Washington after 17 July 1998. Some of the Senators were saying “well obviously our allies don’t understand how serious this is to us. We’ll have to explain it”.
The foreign policy elites just presumed that the idea of governments creating something that could bring in presidents, monarchies, top generals and hold them accountable for war crimes, crimes against humanity and genocide was just not thinkable, much less that the civil law, common law and Sharia law countries could ever agree on a court.
There was great benefit from this being a very small bubble of legal experts taking this forward. Now we realise, in retrospect, that it was a very extraordinary moment in the advance of multilateralism across the board. At the same time there was a major strengthening of the European Union (EU), the creation of the office of High Commissioner for Human Rights, the World Conference process, the Agenda for Peace and the Agenda for Development.
Justice Hub: All of this happened in the shadow of the fall of the Berlin Wall and the end of the Cold War. Correct?
Yes, it was it was the reaction to the end of the Cold War which itself was not predicted by any of the foreign policy elites. The other factor I think was the role of South African leader Nelson Mandela. He came out of prison, he soon became the president and South Africa then adopted one of the most progressive constitutions in the world. The Southern African Development Community (SADC) then became the basis for that continent’s support in the like-minded group for a strong Rome Statute [founding document of the ICC]. There were all sorts of events that you look back now on and realise that you were very, very fortunate. There were so many ways this thing could have gone off track and not happen. It could have been agreed on in very few and we found one of those ways.
Justice Hub: I know there are probably many such pegs but is there anything that you can point to and says “that was really significant” in the development of the Court?
First of all, the attack of 9/11 and the catastrophic response of the United States and the United Kingdom and other governments. That reaction and the establishment of this ‘war on terror’ has done enormous damage. I think a lot of it was sincere and just mistakes, but I think that they didn’t learn from Vietnam, and so many other previous errors. It’s tremendously regrettable.
Mikhail Gorbachev allowed the dissolution of the Soviet Union without violence. It was extraordinary. Yet the way in which the West, in particular, dealt with the dissolution of the Soviet Union and the Russian Federation, I think, has had an enormous impact.
Justice Hub: What other events had a huge impact on the development of the Court?
John Bolton declared war [on the ICC] in 2002 in the United Nations Security Council, so all of the momentum that we could have carried beyond 2001-02, when the court’s statute entered into force, was lost by the US trying to kill it. Then there were early mistakes by the Office of the Prosecutor (OTP). It could have developed in a much more impactful way than it did. The UN General Assembly I think had years of additional work in properly setting up the Court than it delivered on and to this day has delivered on.
Take the one recent decision in this last year when the Prosecutor went to the Pre-Trial Chamber and asked whether the OTP had jurisdiction in the case of the deportation and mass exodus of the Rohingya Muslims that began in a non-state party but ended up in a state party. The Pre-Trial Chamber said yes. I think this was a major judicial decision that the permanent members of the UN Security Council, especially the United States, Russia and China, have much to fear because that will extend the jurisdiction of the Rome Statute to areas that were not anticipated even on July 17th 1998.
Justice Hub: Is the Court in a fit state to deal with the global threats against it?
Within the Rome Statute system, which includes the International Criminal Court, the Assembly of States Parties (ASP), the national legal systems, you have 123 states which are 67 short of two-thirds of the international community.
Justice Hub: Is that robust enough?
Yes, it is. Because the issues I’ve mentioned from the Earth Summit process, all of the world conferences on human rights, women’s rights, social rights, the creation of the UN High Commissioner for Human Rights post, the development of peace architecture, the creation of a Human Rights Council, the responsibility to protect, the Paris Agreement and the sustainable development goals were all done without the leadership of the major powers.
They were all done by the small, middle-power democracies working across regions and across different kinds of governments. That’s what you have in the ICC. If the state parties will hold together I think they have the capacity to actually prevail over the opposition.
Justice Hub: Can they prevail over the current established powers, the post-1945 powers?
There are three countries that I think almost all experts would agree are the ones that have committed aggression in the last 15 years and that’s the United States, the United Kingdom and Russia. So what is the response of the Assembly of States Parties? A new jurisdiction on aggression.
Justice Hub: But not the most effective jurisdiction? It doesn’t include anyone who doesn’t want to sign up.
It’s an extremely weak opt-out which is very unfortunate but nevertheless, it is a signal that the Court, the Rome Statute, the Assembly of States Parties are still responding in a going-forward way. Now, are there other enormous risks? The ICC is a relatively small international organization and institution and the deepening of political and economic integration and the deepening of respect for human rights that occurred especially from the mid-1980s to 2001. And the retreat from that is is very much obvious, whether it’s a Hungary, Poland, Philippines or Venezuela, many places in Africa and now the United States of America.
That retreat one hopes is a threat enough to bring the strong, principled countries into coalition but we don’t know if that’s going to happen. That’s part of the purpose and impact that this global network of NGOs will be able to hold together.
Justice Hub: What role do you see NGOs continuing to play in relation to the Court?
The great supporters of the Rome Statute and the opponents all agree that the NGOs were indispensable in the negotiation and successful establishment of the Court to such a degree that fundamental additional consultative rights were extended to us in this international process. First at the UN, of all places, in the General Assembly and then when the Assembly of States Parties in its second session brought those same consultative arrangements into the Assembly and basically instructed the Court to also do the same. These arrangements have maintained. There is this partnership between the International organization officials, the state parties and the global civil society dedicated to international criminal justice that is a very powerful potential partnership.
There are lots of forces trying to pit the [ICC’s] Judiciary against the Registry and the Prosecution against the Trust Fund etc. There are not so man divisions within the Assembly of States Parties. We had some divisions at the time of the most serious threats from African leaders trying to kill the Court. So many people said that Africa wasn’t really supporting the court anymore, but that really wasn’t true. Among the African heads of governments, there were at least 8 or 10 of them that I think would have been happy to kill the court but 16 African heads of states disassociated themselves from the last anti-ICC resolution in the African Union, an unprecedented event.
In Nigeria and other countries where we have members, whenever there was an instance where they had to go to their High Court to either ask them to arrest Bashir or to oppose the withdrawal from the court, the civil society has been doing it. I am not saying that it’s not a very dangerous and perhaps even existentially dangerous time for multilateralism but I also think that there are very strong resources out there to confront it.
Justice Hub: What are you going to do with yourself now?
I am just stepping down from a kind of a chair of a network out but I’m going to remain in the network and I hope I will continue to be involved with the development of this Rome Statute system for another decade or two. I hope to do some more writing. We published and distributed a book on the negotiations in Rome at the December 2018 assembly. There’s probably also several other contributions, both written and political, that I’d like to continue.
Justice Hub: A group of ICC judges have taken a complaint about their salaries to the International Labour Organization (ILO). People are talking about the comparison with how much money is spent on victims. Is this symptomatic of how badly the ICC is run?
The answer is it’s very unfortunate that 6 judges out of 40 or 80 – I forget how many judges have been at the court since 2003 – are claiming that the ASP is mistreating them by not giving them more than 200,000 euros a year, plus benefits, education benefits and pensions etc.
The ASP ought to appropriately review this claim but I think that a part of the 1% are complaining that they deserve more, which is is very unfortunate, and I hope that it will remain just a very small minority effort and not evolve into something very destructive for the Court.
Justice Hub: There have also been quite a number of ICC cases about work conditions at the ILO. Do they show that the court is not well enough run?
No. I don’t think so. The reports to the ASP from the Court on the reform process and the Revision process were made every year. There were auditor reports every year. Then there were some dismissals or firings and they took it to the ILO and the ILO apparently determined that there was some procedural mistakes or something but I don’t think any of this means the ICC is not well enough run.Republish